A recent decision of the FCC emphasizes that tower owners must remember to change the tower registration for any communications towers after a change in ownership, or risk a fine. In the recent decision, the FCC canceled a $3000 fine that was imposed after an FCC inspection when it appeared a change in the ownership had
A Do-Over on Lowest Unit Rates? – Rescheduled Primaries May Result in New Political Windows
In the hotly contested Democratic Presidential nominating contest, the delegates from Michigan and Florida, which already held Presidential primaries which were labeled as meaningless by the Democratic Party, may become crucial in deciding a winner in the race. Thus, there have been discussions, particularly in Michigan, of holding another Presidential primary or caucus to award
Supreme Court Agrees to Review Fleeting Expletives Case – Could FCC Extend Indeceny to Mobile Media?
The Supreme Court has agreed to hear an appeal by the FCC of the "fleeting expletives" case, where the Second Circuit Court of Appeals threw out the FCC actions fining stations for isolated incidents where a profanity was uttered on the air in a live program. The cases stem from the Golden Globes and Billboard Music Awards, where over-exuberant winners let slip one of those words that you are not supposed to say on TV. The Court of Appeals found that the FCC had not justified its departure from prior Commission decisions where such conduct was not sanctioned. The Court also suggested that the Commission’s decisions did not give broadcasters enough guidance as to when the use of such words was permissible, and when it was prohibited. We have written previously about this case a number of times, including here and here. Should the Court determine that the FCC was justified in acting as it did, this may leave the FCC open to taking new actions in the indecency area – such as the suggestion that one Commissioner recently made that indecency enforcement in connection with video delivered to mobile phones should be explored.
A couple of words about some of the commentary written about this case. First, while many stories have stated that this is the first indecency case to reach the Supreme Court in 30 years since the famous Seven Dirty Words ( or the Pacifica) case, in fact there have been several other more recent cases that have dealt with the indecency issue – though not in the broadcast context. Cable and Internet indecency rules have been adopted by the FCC or by Congress, and usually overturned as not constituting the least restrictive manner of preventing children from being exposed to "indecent" speech – speech which is constitutionally protected (as opposed to obscenity which has no protection as it has no socially redeeming significance) – but from which children can be sheltered. However, in the cable and Internet cases, the regulations have been overturned because there were other less restrictive means of limiting children’s access to the content, e.g. through filters or restrictions on access to specific channels or websites.Continue Reading Supreme Court Agrees to Review Fleeting Expletives Case – Could FCC Extend Indeceny to Mobile Media?
FCC Takes Actions to Increase Diversity in Broadcast Ownership
At its December meeting, at the same time as it adopted rules relaxing the newspaper-broadcast cross-ownership rules, the FCC adopted new rules to expand diversity in the ownership of broadcast stations, encouraging new entrants into such ownership. The full text of that decision was just released last week, providing a number of specific rule changes adopted to promote diverse ownership, as well as a number of proposals for changes on which it requests further comment. Comments on the proposed changes will be due 30 days after this order is published in the Federal Register. As this proceeding involves extensive changes and proposals, we will cover it in two parts. This post will focus on the rule changes that have already been made – a subsequent post will cover the proposed changes. The new rules deal not only with ownership rule modifications, but also with issues of discrimination in the sale of broadcast stations and in the sale of advertising on broadcast stations, new rules that leave some important unanswered questions.
The rules that the Commission adopted were for the benefit of "designated entities." Essentially, to avoid constitutional issues of preferences based on race or gender, the definition of a designated entity adopted by the Commission is based on the size of the business, and not the characteristics of the owners. A small business is one designated as such by the Small Business Administration classification system. Essentially, a radio business is small if it had less than $6.5 million in revenue in the preceding year. A television company is small if it had less than $13 million in revenues. These tests take into account not only the revenue of the particular entity, but also entities that are under common control, and those of parent companies. For FCC purposes, investment by larger companies in the proposed FCC licensee is permissible as long as the designated entity is in voting control of the proposed FCC licensee and meets one of three tests as to equity ownership: (1) the designated entity holds at least 30% of the equity of the proposed licensee, or (2) it holds at least 15% of the equity and no other person or entity holds more than 25%, or (3) in a public company, regardless of the equity ownership, the designated entity must be in voting control of the company.Continue Reading FCC Takes Actions to Increase Diversity in Broadcast Ownership
A Year After the Webcasting Royalty Decision – No Settlement, Appeal Briefs Filed
A full year ago, the Copyright Royalty Board released its decision setting royalties for the use of sound recordings by Internet Radio webcasters (see various posts on the subject here). As an article this week in the Boston Globe sets out, despite much talk of a post-decision settlement to lower the royalties set by the CRB that many Internet Radio operators claim will put their stations out of business, no such settlement has yet been announced. And, in a week that brought about the transfer of the operations of one of the largest webcaster’s operations to a traditional radio company (as CBS took over operations of AOL’s Internet Radio service), appeals of the decision were filed with the US Court of Appeals for the District of Columbia. A busy week, but still no resolution of the Internet radio controversy.
Four separate appeals briefs were submitted to the Court. One was a combined brief of the large Webcasters (represented by DiMA, the Digital Media Association) and the Small Webcasters(Accuradio, Radioio, Digitally Imported Radio, Radio Paradise), another was submitted by several commercial broadcast groups (Bonneville, the NAB and the National Religious Broadcasters Association) and a third by several noncommercial groups (including college broadcasters, NPR, and noncommercial religious broadcasters). A final brief was submitted by Royalty Logic, a company that wants to become an alternative to SoundExchange as the collection agent for performers. These briefs will be answered by the Department of Justice (defending the CRB and its decision before the Court) and SoundExchange. The briefing process will continue for several months, with an oral argument to follow, quite possibly not until the Fall. Thus, a decision in the case may well not be reached until 2009. Continue Reading A Year After the Webcasting Royalty Decision – No Settlement, Appeal Briefs Filed
Deadline for FM Translator Applicants To Select 10 Applications to Continue to Prosecute
In November, the FCC adopted an Order limiting to 10 the number of FM translators from the 2003 translator filing window that a single applicant could pursue. This Order was adopted by the Commission at the urging of LPFM advocates who believed that the large number of FM translator applications filed in 2003 foreclosed some opportunities for new low power FM stations (see our description of the Order here). Last week, the FCC released a Public Notice telling translator applicants to choose which 10 applications that they will continue to prosecute. Applicants have until April 3 to make that choice and notify the Commission of their choice. If no choice is made by that date, the FCC will continue to process the first 10 applications that were on file, dismissing any remaining applications by that applicant.
The Commission is expecting to then continue to process the remaining applications, opening a settlement window after the dismissal process is complete so that the remaining applicants can sort out possible engineering solutions or other settlements that would resolve conflicts between remaining mutually exclusive applications. However, there are a number of Petitions for Reconsideration that were filed against the Order establishing the 10 application limit (including one filed by our firm on behalf of a number of clients). We’ll see if the Commission takes any action on the Reconsideration petitions (and an accompanying Petition for Stay of the selection deadline) or if the Commission marches on and continues to process these applications. For now, applicants should be ready to make their selections on or before April 3.Continue Reading Deadline for FM Translator Applicants To Select 10 Applications to Continue to Prosecute
FCC Releases List of Groups of Mutually Exclusive Applications for New Noncommercial FM Stations
On Friday, the FCC released a Public Notice setting out several groups of applications for new noncommercial FM stations which are mutually exclusive with each other. These applications were filed in the October window for new noncommercial FM stations (information about which can be found here). According to the Public Notice, the identified groups
Dates Set for Comments on the Relationship Between Low Power FM Stations, FM Translators, and Full Power FM Upgrades
Federal Register publication of the Further Notice of Proposed Rulemaking on Low Power FM (LPFM) stations and their relationship to FM translators and upgrades of full-power FM stations occurred today. This sets the comment dates in that proceeding – with comments due April 7, and replies on April 21. This proceeding looks at
FCC Extends Comment Date on Localism Proceeding
The FCC today released a Public Notice granting the request of several broadcast organizations for an extension of time to respond to the extensive proposals for re-regulating the broadcast industry contained in the FCC’s Localism Notice of Proposed Rulemaking. We wrote about those proposals, here. Comments, which were to be filed next week,
The Trouble With LPTV – No Plan for DTV Transition
In recent weeks, Low Power Television stations have been the center of attention in Washington in connection with the Digital television transition. While all full-power television stations are set to convert to digital operations less than a year from now, ceasing analog operations at the end of the day on February 17, 2009, there is no specific deadline for LPTV stations to convert to digital. As the NTIA rolls out its coupon program for the purchase of converter boxes that will take digital signals of over-the-air television stations and convert them to analog for those who do not have digital television receivers (see our summary here), LPTV advocates noted that many converters do not pass through analog signals. Thus, once a television is hooked up to a converter box, that television will not be able to pick up stations broadcasting in analog – so many unconverted LPTV stations after the conversion date will be denied access to television receivers.
Suggestions have been made that the converter boxes be reconfigured to pass through analog – unlikely as many of the boxes have already been manufactured and are on their way to stores (note that some converters do pass through analog signals, but a consumer needs to look for those boxes). LPTV advocates have also asked for some form of cable must-carry during the transition process – a proposal sure to be opposed by cable system operators. Continue Reading The Trouble With LPTV – No Plan for DTV Transition